Destruction or damage of property (itlaf)

In the lexicon, talaf means to perish and atlafahu means to destroy or consume. For jurists, itlaf is removing a thing from its usual useful purpose. ¹

Ihlak can mean the same as itlaf. Talaf is wider, since it can follow another's destruction or a natural blight. Ta'addi, ifsad, jinayah and idrar overlap with itlaf or describe some of its forms. Ghasb, the taking of protected property by open force, shares with itlaf the loss of benefit to the owner, but ghasb requires the taker to remove the owner's possession or to hold the property in a way that negates it. ^{1 2}

The default ruling is prohibition when the act is not permitted by the law, such as an owner destroying his own useful property. Destruction can be obligatory where the law orders it, for instance destroying a pig belonging to a Muslim, or permitted where the owner has no use for the thing. ² The prohibition carries sin, but sin and liability do not necessarily coincide. ²

Destruction may fall on a thing or on its benefit, on the whole or on a part. It may be real or moral, as when a borrowed item is not returned after the lender asks for it or after the loan term has ended. ^{2 6}

A lease may be made on a thing whose benefit can be taken only by consuming it, such as a candle for light, a wet nurse for suckling, or trees hired for their fruit. ² Eating another's food in extreme hunger is permitted destruction, but the eater owes compensation according to the Hanafis and the stronger view of the other schools; some Malikis drop it. ⁶ Dead meat, blood and dead animals' hides, which are not property, may be destroyed without a claim by another, even when the owner is a dhimmi. ⁶

During war, property of the enemy that cannot be carried away may be destroyed when it cannot be gained for the Muslims; this covers the enemy's buildings and trees when needed for fighting, and rests on the report of cutting and burning the palms of Banu al-Nadir. ⁶ Books of magic and similar works with no lawful use may be destroyed, by erasing the names of God, His angels and messengers and burning the rest, or by throwing them into running water or burying them. ⁶

Killing an attacking animal that cannot be stopped without killing it carries no liability, since it is a lawful repelling. ^{6 7}

Destroying wine and pork belonging to a Muslim carries no liability. For wine owned by a dhimmi, the Hanafis and Malikis impose liability, while the Shafi'is and Hanbalis do not. ⁷ Destroying the drum of raiders and hunters, or the tambourine allowed at weddings, carries liability by agreement; for instruments of amusement the majority impose none, while Abu Hanifa requires the value of the raw material. ^{7 8} For gold and silver vessels, those who allow keeping them impose liability for the vessel, while those who forbid keeping them impose liability only for the metal. ⁸

Where a pledgor permits the pledgee to consume the pledge's increments, some Hanafi and Shafi'i texts treat it as lawful and without liability; others treat it as disliked or unlawful, and the Hanbalis allow it except where the debt is a loan. The Malikis forbid it except in the case of a sold item pledged for a price. ^{8 9}

This covers hunting in a state of ihram, inside or outside the sacred precinct, and hunting in the sanctuary by those not in ihram; the plants of the sanctuary are treated alike. ⁹ The jurists differ on the penalty: Abu Hanifa and Abu Yusuf value the game where it was killed and let the offender choose between an offering and feeding the poor, while Muhammad ibn al-Hasan requires a like animal where one exists. ^{9 10} Cutting green plants in the sanctuary is forbidden except for idhkhir, a fragrant grass, on the report of Ibn Abbas. ¹⁰

If the destruction falls on a person, its rules belong under wounds and killing. If it falls on an animal, a plant or an object, there is no liability when the thing is unowned and lawful, or when it belongs to a combatant. Liability applies to protected, owned property, since destruction is aggression and harm. ⁴

Destruction is either direct or by causation, and both create liability. Causation is an act in a place that normally leads to another's loss, such as lighting a fire on a windy day that spreads to another's property, or opening a cage so a bird flies off. ^{4 5} The schools differ on applying this to particular cases: the Malikis, Hanbalis and Muhammad ibn al-Hasan impose liability on the one who opens a cage or cuts a waterskin, while Abu Hanifa and Abu Yusuf do not for merely opening a cage, unless the bird was startled. ⁵

An animal that eats another's crop by night is the liability of its keeper according to the majority; by day there is none, since guarding crops by day is the custom. If a herdsman or someone with control over the animal is present and fails to stop it, liability is agreed. Animals that cannot be restrained, such as pigeons and bees, create no liability. ^{5 3}

Jurists list conditions. The thing destroyed must be property. It must be valued, so no liability arises for wine or pork owned by a Muslim. The destroyer must be capable of liability: a child or insane person owes property damage from his own property, and the blood-money for a life falls on the paternal kin. Liability must serve a purpose, so none arises for property of a belligerent in enemy territory or for rebels' losses in battle. Knowledge that the property belongs to another is not required. ^{3 11}

Fungible property is compensated with its like, and non-fungible property with its value, measured at the place of destruction. When the like is unavailable, the jurists move to value. They differ on the time of valuation: Abu Hanifa takes the day of judgment; the Malikis and Abu Yusuf take the day of usurpation if it was usurped and the day of destruction otherwise; Muhammad ibn al-Hasan takes the day the like ceased to be available; the Shafi'is and Hanbalis take the highest value between destruction and payment. ^{11 12}

If one person compels another, by a compelling threat, to destroy property belonging to a third party, liability falls on the coercer according to the Hanafis, the Shafi'is and one Hanbali view. The owner may claim from the destroyer and the destroyer may recover from the coercer. Some Malikis also make the commander liable. The details belong under coercion. ¹²

Sold property is at the seller's risk before delivery. If the buyer destroys it while it is in the seller's hand, that counts as receipt and the price is due. A gift is completed by the donee's destruction of it with the donor's permission. For a dowry, a mature wife who destroys it in a way that entails liability is treated as having taken receipt. ¹²

If a tailor sews a garment for a fee and another person unpicks it before delivery, the tailor has no fee; he may charge the unpicker for the damage and the usual wage for sewing. ^{12 13} If the seller destroys the whole sold item before delivery, he is treated as having taken it back and the sale is void. ¹³

Harm that spreads from a lawful act performed without ignorance or negligence creates no liability. This applies to physicians, farriers, cuppers and circumcisers who are skilled and do not exceed what they were permitted to do; otherwise liability follows. ¹³

When two people collide and both die, each one's kin owe the other's blood-money. In a ship, goods thrown overboard to save the vessel create no liability for those who threw their own goods; throwing another's goods without permission makes the thrower liable alone. ^{14 15}

Discipline by a father, guardian, teacher or husband creates liability if it goes beyond the usual manner. Where it stays within the usual manner, the jurists differ; the sounder view is no liability, because it is permitted by law and custom. ¹⁵

The thing in a renter's hand is held in trust and creates no liability unless there is transgression, negligence or violation of permission. A private employee is trusted; a shared employee is generally held liable. A usurper is always liable, must return the thing or its value, and if another destroys it in the usurper's hands the owner may claim from either. The Shafi'is hold a borrowed item (ariya) liable in the borrower's hands even without negligence, except for ordinary wear. Lending coins, measures and weights is in substance a loan, and their like or value is owed. ^{15 16}